Contents of issue # 2/2016

Ideological Constancy of Law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: theory@izak.ru

The article is devoted to reviewing the issue of ideology — legal ideology, political ideology, and their interrelationship. The development of social relationships is influenced by the theoretical origins of ideology, their scientific adjustment and value. The author points out that legal ideology is the key to understanding the law as a universal regulatory phenomenon in the system of social relations and its importance is in the legal state which is recognized constitutionally. The author gives etymological meaning of “militia” and “police” in order to show how deeply the amendments of law have influenced Russian mentality. The author comes to the conclusion that the Constitution is the founding document — the official ideology, based on the ideas, basic principles, standards of generic value which legalize the “tonality” of existing legislation and public administration. At the present moment there is a need to develop a strategic legal ideology aimed the ideological unity of Russian citizens forming a democratic legal state.

To a Question of Legal Pluralism

The causes and necessity of use of the notion “legal pluralism” in interbranch disciplines (in connection to jurisprudence) including sociology of law, anthropology of law, scientific direction “law and society” are disclosed in this article. This notion is fully formed way of reflection in law including a key contradiction between law in juridical meaning and other social law in non-juridical humanity sciences. In this article the pluralism in strong and weak meaning is analyzed as well as the opportunity of pluralism in juridical law (poliyuridizm), pluralism in juridical and other social law, pluralism in social law, meaning of appropriate facts for person and juridical practice. The attention is also paid to distinctive particulars of primary social law and its influence on juridical law.

Keywords: a legal pluralism, law in juridical meaning, law in social meaning, sociology of law, law and society.

The current article is devoted to the analysis of the problem of state sovereignty. For the purpose of resolving complicated scientific and practical problems of modern times the authors of the article draw the readers’ attention to the necessity of referring to the investigation of historical experience which received its categorial and conceptual reflection in different political and legal theories and conceptions. In connection with it, the authors of the article consider the little-studied views of two outstanding French academic lawyers Leon Duguit and Raymond Carre de Malberg, who lived in the second half of the XIX — the first half of the XX century, on the problem of state sovereignty, popular sovereignty, and national sovereignty. The authors bring to light the similarities and differences of views on the notion and legal nature of sovereignty, analyze critical remarks about the theory of popular and national sovereignty made by L. Duguit and R. Carre de Malberg. The authors of the article come to a conclusion about the importance of maintaining the notion “state sovereignty” as the key value component of the modern world order, including both the area of international law and the internal political sphere of state.

Issues of Reforming Local Government in the Russian Neoliberal Political-Legal Doctrine in the Early XX Century

The Russian Presidential Academy of National Economy and Public Administration under the President of the Russian Federation
82, Prospekt Vernadskogo, Moscow, Russia, 119571
E-mail: anna0710@yandex.ru

On the basis of comparative legal analysis of the main postulates of the Russian neoliberal political-legal doctrine and legislation of the party of constitutional democrats for consideration to the State Duma I — IV convocations in the early XX century the problem of reforming the system of local self-government, which relied integral part of state and legal development of Russia and its transformation into a legal social state is reconstructed in the article. The author reveals the concept of evolutionary development of Russia in the early XX century, stated in works of neo-liberal thinkers, the final aim of which was to be a social state in which a special role was played by local institutions in the Russian Empire.

Keywords: neoliberal political and legal doctrine, social legal state, the constitutional state, democracy, local government, draft laws, national representation.

Certain Tendencies of the Constitutional-Legal Regulation of Party Formation in the Russian Federation

E. V. ALIMOV

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: const@izak.ru

This article is devoted to the study of certain tendencies of the political parties constitutional regulation in the Russian Federation. With the aid of analysis of the political parties functioning legislation, the legal positions of the Constitutional Court of the Russian Federation and the European Court of Human Rights the author demonstrates the dynamics of the Russian legislation in the field of the party building, as well as the different approaches used in these courts in the interpretation of some restrictive regulation in context of the topic. It is noted that political parties are an important segment of modern democracy and they play an important part not only in the electoral process, but also in the deputy-voter mutual relationship; also political parties can affect certain public authorities. Accordingly showing up general rules of the legislation development in this area and their comparative legal analysis would not only clearly define the real situation of the political parties in Russia and reveal the existing problems, but also indicate a vector for the further development of the constitutional regulations in this field.

Keywords: political party, development trends, the deputy, democracy, voters, party building.

Absolute and Relative Subjective Civil Rights: Theoretical Issues

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: synss@mail.ru

The author demonstrates that subjective rights are a precondition and the main object of legal regulation of public relations. Subjective rights are not a preference or a zone of exclusive competence of the civil law, but an object of comprehensive inter-branch legal regulation in any legal order. The author focuses on subjective civil rights and their classification into absolute and relative ones. The article considers and analyses the doctrine of absolute and relative subjective rights which dominates in the Russian and foreign jurisprudence. The author proves impossibility and groundlessness of differentiation of absolute and relative rights by the number of subjects liable, analyses general passive legal obligation, and substantiates its public rather than civil-law nature. In conclusion the author suggests his vision and understanding of absolute and relative subjective rights.

Legally Significant Representations in Civil Law of Russia

Legally meaningful assurances that are legally significant variety of applications and which are provided for in a new item 4312 of the Civil Code of the Russian Federation, should be evaluated as an independent civil construction that is not included in the contract, but challenging its conclusion. It is argued that although regulatory structure representations of domestic law and received from the Anglo-American law, it has its own original character. The requirements to the information component of the assurances of the said article of the Civil Code are formulated. It is noted that the scope of representation is limited, as you can still use conventional instruments of influence, including the use of well-known remedies. Assurances do not create obligations, but give rise to enforcement relations. Another component representation — a sanction. The responsibility basis under this item of the Civil Code is not the weaknesses of goods or other violations of obligations, but namely unreliable information about certain circumstances.

Legal Description of the Contracts Concluded in the Internet

A. ABDUDZHALILOV

candidate of legal sciences

Bahovaddinov Institute of Philosophy, Political Science and Law of the Academy of Sciences of the Republic of Tajikistan
33, Prospekt Rudaki, Dushanbe, Tajikistan, 734025
E-mail: debtresolution@mail.ru

The article is devoted to the problem of e-contracts performed in the virtual space of the Internet. Based on the analysis of the legal entity of electronic contracts, the main of which are the agreements on performance of information services, the author comes to the conclusion about the institutional failure of contractual relations and the absence of regulations regulation of such relations. In the virtual space of the Internet for real agreements of uncompensated services that contribute to radical change theoretical-methodological character on the entire institution of the law of obligations. For this reason liability law the notion of “paid” should have their alternative price. Formula “grant only real contract of a particular type — gift, loan” in theoretical terms obsolete. Instead operates formula grant also consensual contracts of a certain type, by which we mean the set of contracts on rendering services in the virtual space. Offers specific regulatory measures to fill the legislative gaps in this area.

Optimization of Financial Control Tools: Information Systems

The article is devoted to the legal bases of formation and use of information systems for financial control. The urgency and the need to implement the automation of administrative processes, enabling significantly improves rapid response to changes in a large array of control objects is pointed out. As the advantages of this method of financial control facilitation of collection and compilation of information, reducing the time required for the analysis of information, increasing the efficiency of control over elimination of violations of financial discipline, transparency of information on the performance of financial control are indicated. The basic requirements, procedures and operational features of the state information systems are concidered. Particular attention is paid to the analysis of individual information systems used by the bodies of state financial control in view of the tax administration, and monitoring and analyzing the results of the implementation of government programs and public service delivery, budget execution, procurement of goods, works and services for state (municipal) needs, etc.

Execution of Several Administrative Punishments

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: adm1@izak.ru

Increasing of efficacy of judicial acts proceedings is an actual problem of the governmental management. There are many changes that have been inserted in Code of the Russian Federation on Administrative Violations, nevertheless there are questions about legal norms certainty, legal regulation system conformity including the part of administrative punishment execution. Several questions concerning execution of these kinds of administrative punishments such as administrative financial penalty, administrative suspension of activities, administrative exile of foreign citizen or stateless person outside the Russian Federation, compulsory work are considered in the article. The attention is paid to problems of legislation imperfection that regulates the order of judicial acts proceedings in cases on administrative violations, which can tend to violations of warranties in governmental protection of rights, liberties and legitimate interests of people. The author has formulated the suggestions about making amendments to Code of the Russian Federation on Administrative Violations in order to increase the efficacy of law-enforcement activity in judicial acts proceedings.

Limits of Proofs in Criminal Process (Research Based on Rational Formalism)

The attitude to the notion of “the proving limits” in the criminal process science is controversial: starting from equation of it to “the subject of proving” and finishing with the attempts to identify it as a separate notion through such categories as limits, extent, depth, broadness, level, fullness, width, etc. Herewith the significant role in determination of the proving limits is highly desirable for the development of both the theory of process and the practical proving is recognised. The author analyses the existing theoretical views on the essential matter and proves limits and substantiates of the potential study of these views that would be based on principals of rational formalism. The author claims, that rational formalism as a method of the legal theory of proving does not contradict the contemporary concept of free judicial conviction. As the result of the study, the author offers his own notion of “proving limits” as a number of sources of prove which is required for judgment rational. Wherein the quantitative component of the notion “proving limits” can be expressed in the following ways: by the available sources provided by law; in a possible reference to specific source in the law (the obligatory proving limits); as one of the obligatory legally defined sourses.

Functions of the Supervision Proceedings in the Civil Procedure

I. Yu. BYKOVA

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: i.y.bykova@gmail.com

In this article the author analyses correlation between terms tasks and aims of the civil procedure in whole and these ones of the supervision proceedings in particular. Addressing Soviet and modern Russian jurists’ opinions, the author based on contextual reading of the law rule of the Civil Procedure Code of the Russian Federation that determines aims and tasks of the civil procedure offers her own vision of correlation between the above-mentioned terms and supposes division into the main and additional tasks of the civil procedure. Named tasks of the civil procedure the author considers that determining functions of the civil procedure as means to complete these tasks is needed. Comparing other authors’ terms of the civil procedure function the author formulates her term of a function of the civil procedure. Moreover the question concerning possible synonym of terms: principles, tasks, aims and functions of the civil procedure is also considered. Concluding characterization of the civil procedure functions the author disserts about functions of each stage of the civil procedure, with a particular focus on optional stages of the civil procedure, one of which is the supervision proceedings. Based on functions of the supervision proceedings in the civil procedure the author divides such functions into check, regulatory, protecting, control and right-conferring functions. Employing in particular historic-legal and comparative methods of research, the author of this article characterizes each of the above-mentioned functions, also through determining tasks of each particular function of the supervision proceedings in the civil procedure. In conclusion the author writes that it’s necessity to determine the functions of the supervision proceedings in civil procedure for the purpose of correct understanding the role of the supervision proceedings in the civil procedure of the modern Russian State.

Immunities of State Officials and the Responsibility for the International Crimes: International and National Law

The immunities of high-rank officials regarding to the responsibility of serious crimes of international community concern are analysed in the present paper. Relevance of the topic is maintained in its consideration of the International Law Commission. Principle of the irrelevance of official capacity (Art. 7 IMT, Principle III of the Nuremberg principles, art. 27 Rome Statute of ICC) is universally recognized and has the character of jus cogens. We critically examine the state practice (Pinochet case, Georgia case). The international documents, Criminal Code of the Russian Federation and doctrine are analyzed. By virtue of the constitutional priority of universally recognized principles and norms of International law (Art. 15.4 Constitution), the provisions of the Criminal Code must be fixed in accordance with the Nuremberg principles. This concerns especially principle of irrelevance of official capacity. In case of conflict, the principle of interpretation in accordance with international law should be applied.

Keywords: immunities of high state officials, International Law Commission, Pinochet case, situation 08.08.2008 Georgia investigation, universally recognized principles and norms of International law, Constitution of the Russian Federation, Criminal Code of the Russian Federation, Nuremberg principles, principle of irrelevance of official capacity, Rome Statute of International Criminal Court, crime under international law, jus cogens.

The Multilateral International Treaties Regulating the Legal Regime of the Arctic

V. R. AVKHADEEV

candidate of legal sciences, associate professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: mp2@izak.ru

The modern international legal regime of the Arctic is regulated by multilateral international treaties at all levels of legal regulation: universal, regional and subregional. Universal international treaties regulate the legal status of various objects environment, define the legal status of maritime areas or regulate certain types of human activity, including in relation to the Arctic region. Regional multilateral treaties are concluded between the Arctic states on specific issues of environmental protection and emergency rescue activities. Subregional treaties concluded between states of the Western Arctic for the coordination and optimization of intergovernmental cooperation in the Barents (Euro-Arctic) region. In addition, each of the levels of international legal regulation of the regime of the Arctic has certain drawbacks. Universal international treaties that apply to the Arctic sea areas do not always take into account their specific features. Regional international treaties don't cover complete circle of relations developing between the Arctic states in the course of their cooperation. Subregional treaties apply only to the Western Arctic, and do not regulate the activities of States in the Eastern Arctic and Central Arctic (North Pole region).

Standards of Fair Justice: Problems of Form and Content

M. V. PRESNYAKOV

doctor of legal sciences

Stolypin Volga Region Institute of administration — the branch of the Russian Presidential Academy of National Economy and Public Administration under the President of the Russian Federation
23/25, Sobornaya st., Saratov, Russia, 410031
E-mail: presnykov1972@yandex.ru

The article discusses how the national legislation in the majority of democratic states and the universally recognized international instruments provide the right to a fair trial. The right to a fair trial guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, and a number of other international instruments, and the “right to judicial protection of constitutional rights and freedoms” in the interpretation of the Constitutional Court of the Russian Federation are compared. The author states that a fair judicial procedure is not always clearly entail a fair judgment. The problems of abuse of the right to judicial protection are discussed. It is concluded that the failure to protect an illusory or contrived rights can be an adequate means of countering the use of the right to judicial protection which is not in accordance with its intended purpose.

Keywords: fair trial, judicial protection of the rights, procedural justice, justice of the judgment, international standards of a fair trial, abuse of the right for judicial protection.

Prosecutor in the Court of Cassation in Criminal Cases

D. Kh. Gekhova
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: antikor@izak.ru

Federal Law No. 433-FZ «On Amendments to the Criminal Procedure Code of the Russian Federation and the Annulment of Certain Legislative Acts (Provisions of Legislative Acts) of the Russian Federation» entered into force since January 1, 2013 in relation to the powers of prosecutors to lodge cassation representations against court’s decisions is under review in the article. The authors analyse judicial practice of cassation instance in Moscow City Court of 2014 year on criminal cases and demonstrate some omissions of prosecutors in consideration of cases in the court of cassation. The conclusion shows that a cassation representation should be prepared and submitted by subordinate to higher prosecutor, provided that public prosecutor shall obtain the right to apply directly to that prosecutor who has the right to lodge a cassation representation along with the project thereof. Such novel will positively influence to the quality of cassation representations prepared and made by prosecutors.